Cfi18 v Minister for Home Affairs

[2018] FCCA 2323

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFI18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2323

Catchwords:
MIGRATION – Administrative Appeals Tribunal ­– application for a XA-866 Permanent Protection visa – whether there was error in the Tribunal’s decision to dismiss the application for non-appearance – whether the Tribunal had an obligation to contact the applicant by telephone – whether the Tribunal had an obligation to consider the merits of the application – no jurisdictional error made out – application dismissed.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.426A, 441A, 476

Applicant: CFI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1230 of 2018

Judgment of: Judge Street

Hearing date: 21 August 2018

Date of Last Submission: 21 August 2018

Delivered at: Sydney

Delivered on: 21 August 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Sangha
Mills Oakley

ORDERS

1. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1230 of 2018

CFI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 April 2018 affirming a decision of the not to grant the applicant a XA-866 Permanent Protection visa.

2. The applicant is a citizen of Taiwan. The applicant arrived in Australia on 4 September 2015. On 11 July 2016, the applicant was granted a TZ-417 Visitor visa. On 13 July 2017, the applicant departed Australia. On 3 August 2017, the applicant returned to Australia, and it was not until 6 August 2017 that the applicant applied for a Permanent Protection XA-866 visa.

3. On 16 November 2017, the delegate found the applicant failed to meet the criteria for the grant of a Permanent Protection visa.

The Tribunal

1. On 3 December 2017, the applicant lodged an application for review to the Tribunal. The application for review identified an email address for the purpose of correspondence. On 12 February 2018, the Tribunal sent the applicant an invitation to attend a hearing on 22 March 2018. That invitation was sent to the email address identified in the application for review.

2. The applicant failed to appear on the date of the hearing and on 22 March 2018, the Tribunal found the applicant had been properly invited to attend a hearing in accordance with s 441A(5) of the Act, and in those circumstances proceeded to dismiss the application under s 426A(1A)(b) of the Act for the failure of the applicant to appear.

3. The decision of the Tribunal on 22 March 2018 was also sent to the same email address that the applicant identified on the review application. That letter included information about the dismissal application and gave the applicant an opportunity to apply for a reinstatement on or before 5 April 2018.

4. On 6 April 2018, the Tribunal confirmed the decision to dismiss the application as the applicant did not apply for reinstatement within the 14 day period.

Before this Court

1. These proceedings were commenced on 1 May 2018. A Registrar of the Court made orders on 24 May 2018 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. The Registrar on that date fixed the matter for a show cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”).

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood the nature of the hearing as explained by the Court. The applicant was invited to put submissions from the bar table. No submissions were put by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   1. I was unable to attend AAT hearing. I am in very poor health. During that several days, I stayed in bed and could not stand up. On the hearing day, I felt my had splitting, so my roommate was so afraid that I might die, luckily, they sent me to hospital immediately and I could pick up back to life. Under such a situation, I could not inform of AAT that I was ill and unable to attend the hearing. But AAT did not consider my real body condition, which was not fair to me.

   2. AAT should make a phone call to ask me about my case. AAT rejected me so quick without asking my explanation. AAT should check my real situation. So, it breached the provisions in the law. I should have right to comment on any adverse view. I was denied such rights. I was not given opportunity to explain all aspects of my case. So, the Tribunal’s decision breached my right to natural justice.

   3. AAT is so indifferent to me. I believe Australia is a fair country. Australia will protect the interests of our disadvantaged groups, which was why I fled to Australia to seek help. However, I did not think that AAT is so indifferent to me. AAT did not consider my practual situation and took it for granted that I could attend the hearing like others, which is really not humane.

Ground 1

1. Ground 1 of the application purports to advance an explanation for the applicant being unwell and staying in bed. The explanation does not identify the dates in support of that contention or explain why the applicant failed to attempt to contact the Tribunal to indicate that she was unwell or why the applicant failed to take steps to reinstate the proceedings. Nor is there any suggestion that the applicant did not receive the email communications from the Tribunal. Ground 1 fails to identify any arguable case of jurisdictional error.

Ground 2

1. In relation to ground 2, the applicant was sent communications to her email address. There is no suggestion that the applicant did not receive the email communications. Where the Tribunal found the applicant had been notified in accordance with the statutory provisions, the failure by the Tribunal to take a step of telephoning the applicant cannot be said to lack an evident and intelligible justification. No arguable case of jurisdictional error is disclosed by ground 2.

Ground 3

1. In relation to ground 3, in circumstances where the applicant had failed to attend the Tribunal, the Tribunal was not required to consider the merits of the applicant’s application. The applicant was given an opportunity to have the proceedings reinstated as a result of the communication sent to the applicant’s email address. There is no identified arguable case of jurisdictional error in ground 3.

Conclusion

1. As the application fails to disclose any arguable case of jurisdictional error, I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 September 2018